Activist Okiya Omtatah and two groups want the court to quash all BBI activities, including its report, “because they were undertaken illegally by an illegal entity”.

The groups are Muhuri and Katiba Institute (KI), interested parties in the suit.

The three are challenging the legality of a 14-member committee President Uhuru Kenyatta Monday tasked with steering the implementation of the Building Bridges Initiative report.

Head of the Public Service Joseph Kinyua gazetted the Building Bridges to Unity Advisory Taskforce, consequently extending its term, having started working in May 2018.

Omtatah filed a suit Monday, seeking orders blocking any extension of the mandate and tenure of the taskforce.

“The President has extended the term of the taskforce so that it could, at least in part, initiate a process of constitutional reform under Article 257 of the Constitution – the popular initiative process,” Omtatah says.

“The Constitution provides that a popular initiative should be initiated by a voter. It is not a process intended to be initiated by the State. [If the State initiates it], the process becomes inherently unfair and discriminatory since other voters seeking to initiate popular initiatives do not benefit from the largesse of the State to do so.”

The taskforce finalized its report on October 23, 2019. Uhuru and former Prime Minister Raila Odinga publicly released it in November 2019.

The petition follows a similar query Muhuri, KI, and International Commission of Jurists (ICJ) raised with Kinyua in December 2019. The three questioned the BBI legality and cost. Kinyua did not respond to inquiries.

[VIDEO] BBI legality, cost queried

The petition states the work and outcome of the taskforce have violated the constitution.

“The court ought to declare it unconstitutional, invalid, null, and void,” the petition says.

Neither Uhuru nor Kinyua has provided information on how the team and its two joint secretaries were chosen.

“The process of choosing the members was secretive, corrupt and not subjected to the thresholds set in the Constitution and legislation for appointment to the public office,” the petition says.

Parliament did not ratify the work of BBI. The August House is the only institution the Constitution vests with the power to make provision having the force of law in Kenya, the case states.

Omtatah accuses Uhuru of setting up the team without indicating the legal framework or any provisions of the law he drew his authority.

“The petitioner posits that even if the President had wanted to, he could not have used the Commissions of Inquiry Act (Cap 102) to lawfully institute the taskforce since the Act does not concern instituting a process for amending the Constitution through a popular initiative,” Omtatah says.

Raila, an advocate of BBI, has said there will be a change in the Constitution through a referendum by mid this year.

But the suit says the quest like Raila’s appears personal. The Draft Constitution of Kenya (Amendment) Bill 2019, which has almost similar proposals as the BBI report, has not received State funding and support like the latter.

Neither Uhuru nor Kinyua has provided information on how the team and its two joint secretaries were chosen.

Omtatah says taskforce is duplicitous.

“It is spending money on functions that are already assigned to other state bodies,” the activist says.

The Constitution and national legislation outline the taskforce’s mandates to various State and government institutions.

Such establishments include Parliament, the Ethics and Anti-Corruption Commission (EACC), the Public Service Commission (PSC), and the Kenya Law Reform Commission. Others are the National Cohesion and Integration Commission NCIC), the Kenya National Commission on Human Rights (KNCHR), the Commission on Administrative Justice (CAJ), and the National Council for Administration of Justice (NCAJ).

The petition notes the BBI taskforce is illegally using public funds “because it is an illegal entity and its funding was not subjected to parliamentary scrutiny”.

“It is not financially accountable to anyone since its funds were never formally appropriated by Parliament.”

Read the full petition here.